Foreclosure: A Novel (21 page)

Judge Spivey shook his head at this poor excuse of a lawyer. “Come on, man. You have to know your record before you come before this court.”

The public defender stood still for a beat and then shook his head as if he was ready to crawl back in bed. Poor sap probably went to law school with dollar signs in his eyes only to finish at the bottom of his class with no option but this job, and now he barely earned more than a teacher but carried three times the student-loan debt. David wondered whether he should feel grateful for avoiding such a fate. But law school had been too easy for him. And he’d known it would be Gainesville, where his LSAT was in the ninety-ninth percentile. He could have paid forty grand a year to attend a prestigious school where he might have had to compete to rise to the top, or get paid to go to school in bright and sunny Florida where the likes of this public defender was the norm. It was a no-brainer. And watching this schmuck bumble his way through an oral argument only reaffirmed that David had made the right choice.

Now the attorney for the appellee, the State of Florida, took her turn, doing what David would have to do momentarily—just convince the panel that the trial court had done the right thing. “The verdict below should be affirmed because … .” It was as simple as that—let the status quo stand.

David knew he should feel a little nervous by now. It was only a matter of minutes before Joe McLaren would have the floor, accuse David of unethical behavior, and request that these three judges undo the jury’s verdict, the culmination of more than a year of David’s life.

A few minutes later, Judge Stevens thanked the attorney for the state as she concluded and waived the remainder of her time. Judge Stevens recognized the public defender for rebuttal.

The slouch stood again and approached the podium. “The appellant waives rebuttal.”

Freaking pathetic
, David thought, and the looks on the judges’ faces agreed.

The deputy clerk stood and called the next case. “
Ed and Wanda Savage versus Gaspar Community Bank
. Case number 6D dash 342.”

David took his seat at the table for the appellee. He waited for Joe to appear at the opposite table. When no one appeared, David turned and watched Ed and Joe having some kind of muted argument in the gallery. Then it looked like Wanda was trying to talk sense into Ed, but he blew them both off and stormed to the front of the podium.

Judge Stevens requested appearances from counsel.

David stood to introduce himself. Then he watched Ed approach the podium, now a shade paler than he’d looked outside the courthouse. “I’m Ed Savage. I am going to be proceeding in this appeal pro se.”

Judge Spivey leaned toward his microphone. “Mr. Savage, I note that an attorney filed a brief on your behalf. Is that attorney not arguing today?”

“That’s right, Judge. I just fired him.”

Judge Ayerbach peered at Joe with a sigh. “With all due respect, Mr. Savage, arguing an appeal pro se is not advisable.”

“Just don’t do it,” Judge Spivey added.

Ed rubbed his hands together. “I’ve made up my mind on this. I’ve read the briefs and I don’t like what he was going to argue today.”

Judge Ayerbach chimed in. “Mr. Savage, I note that your spouse is also a party to this appeal. We have yielded the appellants twenty minutes for their argument, and you’re using that time. Does Mr. McLaren no longer represent her, as well?”

Ed glanced at his wife. Wanda fought tears as she nodded in agreement.

“That’s right,” Ed said. “We do not believe the brief filed by our attorney adequately …” Ed struggled for the right word, apparently struggling to keep his balance at the same time. “It doesn’t make the point we wanted to make on this appeal.”

“And what point is that?” asked Judge Stevens.

“That we were lied to by this bank. And they lied to the jury as well.”

Judge Ayerbach leaned forward. “Mr. Savage, as an appellate tribunal, we do not make determinations of credibility. That was for the jury to decide. We have to agree with the findings of the jury unless they were against the manifest weight of the evidence.”

Ed inhaled deliberately, as if trying to catch his breath. “But there was an email. It would have shown that they were lying to the jury. In that email, their loan officer promised me and my wife that if we went with this loan then we could refinance in two years at a rate we could afford. They knew we could not afford that loan at that rate. They told us to lie on our application. The loan was supposed to be temporary. But when the time came to refinance, the value of the house had dropped too much to refinance.”

Judge Stevens shook his head. “Mr. Savage, you cannot raise an argument on appeal for the first time—”

“It’s not the first time!” Ed’s voice echoed through the courtroom.

Judge Stevens turned stern. “Do not interrupt me, Mr. Savage, and do not raise your voice. This issue is not an appellate issue. You should have filed a motion to compel in the trial court if you didn’t get the email.”

Ed’s face tightened with frustration. “We did. We filed several. They didn’t produce the email. They lied and said they didn’t have it.”

“Well, why didn’t
you
just produce this email?” asked Judge Ayerbach.

“You know, I’ll ask myself that question every day for the rest of my life. Why didn’t I keep that email?” He smiled at the judges and took a breath. “I’m a simple man. I’m not good with computers. A guy gives me his word, I take it. I don’t plan for lawsuits. This is my first one, and God help me, my last. I went back to my email provider though. I paid someone to do some forensic examination of my computer. We couldn’t find it.” Ed panted for air. “But that’s the answer, Judge. I deleted it years ago.”

Judge Spivey shook his head. “Mr. Savage, do you wish to address any of the arguments actually made in your brief?”

Ed stared at the podium carefully. He tilted his head and pointed to David. “I’ll say this: that guy sitting over there.” Ed paused, like he was imitating a lawyer he’d seen on TV. “He’s a snake. I guess he’s a good lawyer, but he’s a snake. What do they call it, a snake in the grass? He beat us. What he said, especially in his closing. From what I know about the rules of ethics, it was just wrong.”

Judge Ayerbach raised her eyebrows. “You were at that trial, were you not?”

Ed nodded.

“Then you heard the trial judge, when your attorney objected, instruct the jury to disregard those statements. I found the record very clear on that point.”

“Yes, he did. But how do you put something like that out of sight and mind? They couldn’t disregard it.”

Judge Spivey shook his head, obviously sympathetic to Ed’s plight. “It was within the trial court’s discretion, Mr. Savage. That’s what we have to consider. Did the trial court abuse its discretion? These courts are very busy and have to hear a lot of cases. We can’t expect perfection. We can’t second-guess every decision they make. I’m sorry, I’m just afraid you haven’t given us enough.”

Ed looked ready to sit down. “Can I talk again when he’s done?” He gestured toward David.

“You will have five minutes for rebuttal.” Judge Ayerbach looked to David. “Please proceed, Mr. Friedman.”

David knew about the only way he would lose this now was if the lost email somehow floated out of his attaché and landed on the judges’ table. He’d like to proceed to the podium, tell the judges he agreed with everything they’d just said, and leave. Instead, he would do the lawyer equivalent.

“May it please the court,” he began. “I want to begin with something Judge Spivey just remarked. And that’s to remind you of the trial court’s broad discretion in a case like this.”

“Let me ask you this,” Judge Ayerbach interrupted. “You would agree, Mr. Friedman, that your comments during the closing were inappropriate, would you not?”

“More than that, Your Honor, they were unethical. I concede that.”

“Does your client?” Judge Spivey asked.

“Of course, I speak on my client’s behalf.”

Judge Spivey continued. “Because that’s one thing that perplexes me about this appeal, Mr. Friedman. Why on earth are you, the attorney accused of unethical conduct necessitating a new trial, representing the bank on appeal?”

David knew Judge Spivey was trying to throw a bone to Ed and make David look bad in front of the clients, both of which were probably warranted. “Judge Spivey, we see this as a routine appeal on a few very straightforward issues. Outside appellate counsel was not required for this case.”

“So you don’t think you have a conflict of interest at this point?”

“No, Your Honor.”

Judge Stevens rolled his eyes. David hoped it was at Spivey’s question and not David’s answer.

“While we’re asking irrelevant questions,” Judge Stevens said, “let me ask Mr. Friedman another one. Because I’m intrigued by the allegation Mr. Savage made with respect to this smoking-gun email.”

David smiled at Judge Stevens. “I wouldn’t call it a smoking-gun email, Your Honor. Even if the email existed, it would not change the result.” David sensed Ed Savage was getting riled up at the other table.

Judge Stevens cocked his head back. “So if Mr. Savage were to find that email before our decision is rendered and before his home is sold, would that email constitute new evidence that would warrant a new trial under Rule 1540?” He seemed proud of his question. Based on her smile, Judge Ayerbach apparently liked it too.

David collected his thoughts. “It would not, Judge Stevens. It would not be new evidence. Mr. Savage already testified that the email existed. The jury simply did not believe him. More importantly, even if the email existed—”

“Does it?” Judge Ayerbach’s question cut through the courtroom like gunfire.

“Does it what?” David asked.

“Does the email exist?”

David took a deep breath. He surely was not the first lawyer to lie to an appellate panel. And he wouldn’t be the last. “Judge, I’ve never seen it. The trial court was satisfied my client made a reasonable search of its computer records for the email. But even if it did exist, the email would be contradicted and barred by the loan documents that expressly state that all prior agreements between the parties are superseded by the loan. The loan said nothing about the right to refinance in two years at a lower rate that Mr. Savage could actually afford. If he believed that, it was unreasonable. And the jury found accordingly.”

Ed jumped to his feet. “It was not unreasonable!”

Judge Ayerbach turned her fiery eyes on Ed. “Sit down at once, Mr. Savage, or you will be removed from this courtroom. This is not a public debate. This is a court of appeals.”

But Ed didn’t sit down. Instead, he just leaned against his table, and a moment later he gasped for air. David glanced at the judges, but they were all looking at Ed. David wasn’t sure whether they had any other questions for him. He had nothing else to say.

“In sum, this court should affirm the verdict and the judgment entered thereon. Thank you.” David nodded deferentially and took his seat. He tried to ignore Ed Savage, but this was becoming harder to do as Ed began to moan and wheeze.

“Mr. Savage. Your rebuttal,” Judge Stevens said.

Clutching his chest, Ed stumbled over to the podium. “This is an outrage,” he muttered painfully. “A pure travesty of justice. I put my life on the line for this country. Held dead soldiers in my arms when this punk was drinking from a bottle.”

“Bailiff, please remove Mr. Savage,” Judge Ayerbach demanded.

Two overweight deputy sheriffs rushed Ed, but he slid through them, lunged at David, and tackled him onto the cold floor. David tried pushing him off, but Ed’s long arms were too strong. He gripped David tightly, saliva drooling from his lips.

“I told you I’d kill you,” he murmured, his hot breath beating down on David. He landed a few blows on David’s head. Joe and Wanda tried to break it up, but Ed wouldn’t budge.

Ed finally gave up hitting David. Instead, he locked his hands around David’s neck and squeezed. David struggled for air. He panicked. Was this really how he was going out?

Finally, two bailiffs broke Ed’s grip and threw him to the ground. The instant Ed released David, one of the bailiffs jutted a taser into Ed’s side and pulled the trigger. Ed started convulsing from the shock. A second later foam spewed from his mouth, and then Ed hit the floor.

“He’s having a heart attack!” Wanda cried. “He was having chest pains this morning, but he wouldn’t listen to me.”

A bailiff slammed the doors to the courtroom open, and another one sprinted in with a defibrillator. Ed’s convulsions seemed to reach a painful climax as his head shook and his chest heaved. Then, eerily, his body went limp. The three judges stood and watched as the bailiff tore open Ed’s shirt and applied the small white pads to his chest.

David stood over his adversary, wondering what he could do to help. He felt helpless because he was.

“You’re going to live, you hear me?” Wanda cried over Ed. “You’re going to live.”

David hoped she was right.

David returned to the office late that afternoon and found the staff in a sullen mood. He avoided eye contact as he trekked along his hallway. Feeling every head he passed glaring at him, he began to wonder if Alton was spreading rumors that David had personally assaulted Ed Savage and put him in the hospital.

He entered his office to his phone ringing. As expected, it was Blake Hubert.

“How are you holding up?” Blake asked.

“A little dazed but fine.”

“I can’t believe they resuscitated him. I guess we can’t expect to be so lucky.”

David waited for a moment, wishing his client could see the look of disgust on his face. “So what do you want, Blake?”

“I want to know where we go from here.”

“They’ll issue a ruling within a few weeks.”

“And then we can sell the property?”

“Yeah.” David looked up and saw Mirabel standing in his doorway, mascara smeared under her eyes. “Got to go,” he mumbled into the phone, and hung up. “What a prick.”

Mirabel started sobbing.

“Are you okay?” he asked.